Tag: European Court of Human Rights

The decision of the Fifth Section of the European Court of Human Rights in the case of E.S. v. Austria has been welcomed by Islamists in Pakistan and condemned by secularists in Europe. It has also been misunderstood. Some of those who have condemned the refusal of the Court to denounce Austria’s domestic criminal law are those who on other occasions would denounce it for interfering in the sovereignty of an independent country.

In strict legal terms all that the Court has done is to rule that an Austrian law making it a crime – in some circumstances – to “disparage” religion, is not incompatible with the European Convention on Human Rights.

It has not established a Europe-wide blasphemy law. It has not ruled that criticising or insulting Muhammad is a crime. It has not ruled that it is criminal to be rude about the Muslim faith. It has not ruled that Islam is entitled to legal protection denied to other religions.

Nor is it necessarily the last word in the case. There is still some prospect that it will be heard by the Grand Chamber of the ECtHR which could reverse the decision.

But for all that, it is a dreadful judgment, not least because it has immediately and predictably been hailed by Muslim religious fanatics as support for their demand to hang the the 47 year old Pakistani Christian Asia Bibi for supposedly insulting Muhammad. Worse still, it does so at a time when the Pakistan Supreme Court has reserved judgment and is considering whether to uphold her conviction and death sentence.

Theresa May’s Government has floated the idea that the next election might be contested on a pledge to incorporate all the rights guaranteed by the European Convention on Human Rights, while leaving the European Convention and the jurisdiction of the European Court of Human Rights. There are plenty of arguments against such a course – not least the practical one that the midst of tricky Brexit and post-Brexit negotiations might not be the best time to take on an avoidable burden of human rights law reform – but it is in some ways a more coherent policy than the previous one which, insofar as it could be discerned at all, was to dilute some of the Convention rights in UK law while agreeing to abide by the decisions of a ECtHR which would not agree to any such dilution.

Critics have largely concentrated on the political and diplomatic pitfalls of abandoning the European Convention, and with it the Council of Europe. Would it really be right that Britain should join Belarus, Kosovo and The Holy See as the only sovereign nations outside the Council of Europe? On the other hand, do we really want to be part of a human rights club that includes Vladimir Putin’s Russia?

But leaving aside these international issues, should Theresa May’s proposal become official Conservative policy, it will mark the final acceptance by the Conservative Party that the common law alone is inadequate to protect human rights, and a recognition that “universal human rights” have a central part to play in British law.

But what are these “human rights?”

Should they all be equally protected by law?

Are some rights more universal than others, and if so how do we decide which are deserving of either protection or special status?

It is easy for lawyers to become complacent and to stop thinking. Nowhere is this tendency better demonstrated than in the law of human rights where each side of the debate tends to dig itself into deep trenches, while being more willing to engage in bad tempered name-calling than in constructive debate.

Barristerblogger is therefore proud to publish this exclusive guest post by the country’s leading conservative philosopher and thinker, Professor and Bencher of the Inner Temple, Sir Roger Scruton.

The European Court of Justice and the European Court of Human Rights are courts whose decisions are made by judges trained in jurisdictions with distinct traditions of legal reasoning, many from former communist states in which law, as an independent source of authority, was deliberately extinguished. These judges cannot be removed from office by any procedure that a citizen could initiate, and their judgments override the legislative and judicial decisions of sovereign countries under their sway. This opens an avenue for transnational elites to impose their will on people in defiance of local customs and national sovereignty. Continue reading “Exclusive: Guest Post by Sir Roger Scruton. How do we decide which human rights should be protected in law?”